AB 313 Could Take Water Right Violation Hearings Away from State Water Board

The California legislative session recently concluded, and among the most surprising arrivals to the Governor’s desk was Assembly Bill (AB) 313, authored by Assemblymember Adam Gray (D – Merced). AB 313 would transform the adjudicative process for water right violation matters by shifting hearing authority from the State Water Resources Control Board (State Water Board) to administrative law judges (ALJs).

The bill would create a Water Rights Division within the Office of Administrative Hearings, staffed by full-time ALJs with at least eight years’ experience in water law. Under AB 313, any water rights matter involving administrative civil liability or a cease and desist order would be heard by an ALJ rather than the State Water Board. The Division would be authorized to retain – and the ALJ would be authorized to utilize – an independent expert to testify during the proceedings.

Similar to adjudicative processes for many other State agencies, ALJs in the Water Rights Division would render only recommended decisions, with the final decision to be confirmed or rejected by the State Water Board. Yet AB 313 would nonetheless represent a significant shift in decision-making authority. The finder of fact has a key role in framing the proceedings, and it is likely the State Water Board would approach an ALJ’s recommendation with at least some level of deference.

The California Supreme Court has ruled that the combination of investigative, prosecutorial, and adjudicatory functions within a single agency is not a violation of due process. (Morongo Band of Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737.) Proponents of the bill, including agriculture and water agencies, argue that fairness nonetheless necessitates greater separation between the State Water Board’s prosecutorial and adjudicatory roles. The State Water Board currently has authority to initiate enforcement actions, pass new regulations and conduct its own hearings. According to AB 313 supporters, ALJs would be more neutral arbiters for water rights disputes. The bill’s detractors argue that the current hearing rules already contain sufficient due process protections and mirror the structure used by other agencies including the California Air Resources Board and the Department of Fish and Game.

Both sides of this debate will be anxiously anticipating news from the Governor’s office. The deadline for the Governor to sign or veto the bill is October 15.